2017 OHSTC 10
Case No.: 2016-20
Seaspan Marine, Appellant
International Longshore and Warehouse Union Local 400, Respondent
Indexed as: Seaspan Marine v. International Longshore and Warehouse Union Local 400
Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an Official Delegated by the Minister of Labour.
Decision: The direction is confirmed.
Decision rendered by: Mr. Michael Wiwchar, Appeals Officer
Language of decision: English
For the appellant: Ms. Virginie Vigeant, Employee Relations Manager, Seaspan Marine
For the respondent: Mr. Paul Lumsden, Vice President, International Longshore and Warehouse Union Local 400
Citation: 2017 OHSTC 10
 These reasons concern an appeal brought under subsection 146(1) of the Canada Labour Code (Code) of a direction issued by Mr. Philip D’Sa, Senior Marine Inspector, Transport Canada and an Official Delegated by the Minister of Labour (the Ministerial Delegate) on May 11, 2016. Ms. Virginie Vigeant on behalf of Seaspan Marine filed the appeal with the Occupational Health and Safety Tribunal Canada (Tribunal) on May 27, 2016.
 On March 29, 2016, the Ministerial Delegate visited the work place of Seaspan Marine located at, 10 Pemberton Avenue, North Vancouver, BC, to conduct an inquiry into the employer’s compliance with their obligations under the Code, and the Maritime Occupational Health and Safety Regulations (the MOHSR).
 During that intervention, the Ministerial Delegate met with Ms. Vigeant, Employee Relations Manager, for the employer, Seaspan Marine, and the work place health and safety committee representatives.
 The Ministerial Delegate focused his intervention on the following matters:
a) Did the employer have a Violence Prevention Policy in compliance with the Code and the MOHSR.
b) Have employees been trained in the Violence Prevention Policy.
c) Is the employer complying with the requirements of their policy.
 The Ministerial Delegate made some determinations following this intervention and subsequent submissions provided by the employer. It was determined by the Ministerial Delegate that the employer had a “Violence Prevention Policy” (VPP) and it had been recently reviewed and amended. The policy was in compliance with the requirements of the Code and the MOHSR.
 It was determined by the Ministerial Delegate, that the employer was not able to produce records demonstrating that employees had been trained in the employer’s VPP. The employer was informed by the Ministerial Delegate about their responsibility to provide employees training and the requirement to keep records of the training. Subsequently, the employer was asked if they would provide an “Assurance of Voluntary Compliance”, an alternative compliance scheme used instead of issuing a direction, to correct the alleged contraventions, which was declined by the employer.
 Additionally, the employer informed the Ministerial Delegate that there had been six prior incidents of work place violence at Seaspan Marine. However, the employer was unable to provide any record of those incidents. Transport Canada, the Ministerial Delegate’s department, was aware of one incident following a complaint of alleged work place violence with regards to Mr. Mike Hoey, Deckhand, and another employee at Seaspan Marine, following an incident that took place on September 22, 2015.
 On December 1, 2015, Mr. Hoey reported, in an email to Ms. Diane Richards, Director, Employee Relations and Wellness, an incident of alleged work place violence during his work day shift on the Cates 1 Vessel (MV Cates 1) on September 22, 2015. The incident involved Captain Mark Robson, the Captain of the MV Cates 1. Mr. Hoey alleged that, during a meeting, attended by Captain Robson and a Mr. Fullerton, Captain Robson kept insisting that something was wrong with Mr. Hoey and then, Captain Robson leapt up, leaned across the table, shoved his open palm in front of Mr. Hoey’s face and started screaming at him to keep quiet using profane language. Mr. Hoey rose from his seat and ran out the back deck where he told Captain Robson that he was untying the boat and that he wanted to go back to the Seaspan Marine dock.
 Mr. Hoey reported the incident to Mr. Rob Armstrong when he arrived at the dock and then Mr. Hoey requested a meeting with Seaspan representatives and his union representative. Mr. Hoey repeated what occurred between Captain Robson and him. Mr. Hoey was told that Captain Robson would be interviewed and to wait with Mr. Lumsden. A second meeting was convened and Mr. Hoey was told to go home with pay for the day and that Captain Robson and him would not be allowed to sail together for three months. Mr. Hoey was not content with that outcome and stated that he felt like he was being punished for being the victim. Mr. Hoey received a letter on September 28, 2015, from Mr. Thomson confirming the decision, but Mr. Hoey disagreed with what was reported as his version at the meeting. Mr. Hoey had a subsequent meeting with employer representative Mr. Whitworth; Mr. Bart Reynolds also attended that meeting. Mr. Hoey recounted to them his version of the incident and his concerns about the company’s decision.
 On May 11, 2016, the Ministerial Delegate issued a direction to the employer identifying two contraventions to the Code that reads as follows:
IN THE MATTER OF THE CANADA LABOUR CODE
PART II- OCCUPATIONAL HEALTH AND SAFETY
DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)
On March 29, 2016, the undersigned Delegated Labour Program Official, (DLPO) conducted an inquiry in the work place operated by Seaspan Marine, being an employer subject to the Canada Labour Code, Part II, at 10 Pemberton Avenue, the said DLPO is of the opinion that the following provisions of the Canada Labour Code, Part II, are being contravened.
1.Paragrpah125(1)(z.16) of the Canada Labour Code, Part II (Part II), paragraph 104(1) of the Marine Occupational Health and Safety Regulations(MOHSR). Mr. Mike Hoey has not been trained in the Employer’s Violence Prevention Program, as required by the regulation.
2. Paragraph 125(1) (z.16) of Part II and subsection 103(3) of the MOHSR.
The incident of violence reported by Mike Hoey, has not been investigated by a competent person as required by the regulation or as required under step 2 of the employer’s Violence Prevention Policy.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contraventions no later than May 13, 2016.
Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to take steps, no later than May 13, 2016, to ensure that the contraventions do not continue or reoccur.
Issued at Vancouver, this 11th day of May, 2016.
 On May 27, 2016, the appellant filed a notice of appeal of the direction. The appellant later specified that it was only appealing direction number two dealing with the alleged contravention of paragraph 125(1)(z.16) and subsection 103(3) of the MOHSR. The hearing of the appeal took place on September 14 and 15, 2016, in Vancouver, British Columbia.
 I have to determine the following issues:
1) Whether the Ministerial Delegate lacked jurisdiction to investigate this matter and to issue the direction under appeal?
2) If the answer to question 1 is in the negative, whether the employer has contravened paragraph 125(1) (z.16) of the Code and subsection 103(3) of the MOHSR by failing to appoint a competent person to investigate the allegations of work place violence made by the employee?
Testimony of the Ministerial Delegate
 The Ministerial Delegate testified that he is a Transport Canada Marine inspector and a Delegated Labour Program Official (DLPO). He has worked in this position for Transport Canada Marine for approximately 18 years. His primary duties relate to cargo inspections and his secondary duties are those of a DLPO. He enforces primarily the Canada Shipping Act, Transport of Dangerous Goods Act and their respective regulations. Secondarily, he enforces the Canada Labour Code and the MOHSR. He has been a Ministerial Delegate since 2001. His duties relating to the Code and the MOHSR are conducted mostly on a reactive basis relating to refusals to perform dangerous work, hazardous occurrences investigations and complaints. He also explained the reporting structure and relationship at his office between his colleagues Mr. Harvinder Singh, DLPO and also a Ministerial Delegate, and Mr. Masoud Jahani, Officer-in-Charge, and himself. Those colleagues had some involvement in the circumstances involved in the Ministerial Delegate’s intervention.
 The Ministerial Delegate testified that he attended the Seaspan Marine work place on two occasions and that he had meetings as recorded in his correspondence with the employer. He was aware of a previous intervention involving a complaint received from Employment and Social Development Canada, Labour Program, and the involvement of DLPO Singh. He did not meet with Mr. Hoey or have any direct contact with him.
 In regards to the previous intervention regarding DLPO Singh and Seaspan Marine pertaining to a complaint filed by Mr. Hoey, the Ministerial Delegate testified that it did not have a bearing on his intervention or in the issuance of his direction to the employer. He testified that a formal or final decision on the matter of Mr. Hoey had not been rendered in reference to the intervention involving DLPO Singh.
 In the Ministerial Delegate’s opinion, the matter of alleged violence in the work place was not resolved between Mr. Hoey and the employer and therefore a competent person had to be appointed by the employer to investigate the matter. Furthermore, he did not uncover any evidence to indicate that Mr. Hoey had received any training in regards to the employer’s VPP.
Testimony of Mr. Mike Hoey
 Mr. Hoey testified as the appeals officer’s witness. He testified that he has been a Deckhand with Seaspan Marine for 16 years, since 1999. On September 22, 2015, during a meeting with Captain Robson he believed that he was going to be attacked by him and that he felt threatened and intimidated. It is Mr. Hoey’s evidence that employer did not do a proper investigation into his complaint and that he did not receive any training on the employer’s VPP. Mr. Hoey did not consider his complaint of work place violence to be resolved.
Submissions of the parties
A) Appellant’s submissions
 The appellant first submitted that the Ministerial Delegate does not have jurisdiction to issue the direction under appeal. According to the appellant, another Transport Canada Marine representative, DLPO Singh, who was assigned to investigate Mr. Hoey’s complaint, had already made a decision. In support of this argument, the appellant refers to an email from DLPO Singh to an employer representative indicating that both the employer and Mr. Hoey should follow the internal process as described in the employer’s VPP.
 The appellant is thus of the view that the Ministerial Delegate had no jurisdiction to reopen a matter that had already been investigated and decided by another Ministerial Delegate. Moreover, in doing so, the Ministerial Delegate violated the principles of natural justice and procedural fairness.
 The appellant argues that the direction should be rescinded on that basis alone. However, if the appeals officer is of the view that Mr. Hoey’s complaint was not fully investigated by DLPO Singh, the appellant submits the following arguments to support a rescission of the direction.
 The appellant contends that the Ministerial Delegate has not properly investigated a reported incident of violence in the work place. The Ministerial Delegate did not conduct an investigation into the complaint and only relied on the written information provided by Mr. Hoey and the employer in order to reach his conclusion on the occurrence of a violence incident.
 In order to determine whether the violence in the work place provisions were contravened, it is submitted that the Ministerial Delegate should have undertook a formal investigation, which would require a meeting with Mr. Hoey, the alleged harasser and his union. Since the Ministerial Delegate did not conduct a proper investigation, he could not come to a different conclusion than the employer, who properly investigated the complaint.
 The appellant further submits that the Ministerial Delegate’s decision was made without reasoning or serious analysis and was based solely on the allegations of the employee. The Ministerial Delegate did not conclude that an occurrence of violence in the work place had occurred but chose to rely solely on the fact that Mr. Hoey disagreed with the employer’s position to conclude that the employer was in violation of section 103(3) of the MOHSR.
 Furthermore, the appellant submits that if I am of the view that the Ministerial Delegate could legally come to the conclusion that Mr. Hoey was subject to work place violence, the employer’s position is that the matter had already been resolved as per section 103(2) of the MOHSR.
 To support its position that the matter had been resolved, the appellant refers to the decision of Appeals Officer Pierre Hamel in Via Rail v. Cecile Mulhern, 2014 OHSTC 3 (Via Rail) dealing with the interpretation of section 20.9 of the Canada Occupational Health and Safety Regulations (the COHSR), which contains the same requirements and language as section 103(3) of the MOHSR. In that decision, the appeals officer found that the expression “if the matter is unresolved” has to be interpreted in the following context :
 […] what is then the relevance and purpose of section 20.9 in this overall structure? I understand the process contemplated in that section to be concerned with bringing a response to situations of actual work place violence. It is not concerned by view with an examination of the factors that may contribute to work place violence. With that purpose in mind, subsection 20.9(2) envisages two possibilities: the employer becomes aware of work place violence or becomes aware of “alleged” work place violence. In the first scenario, the employer knows of a situation of violence, for example, has witnessed it, and must resolve the matter with the employee as soon as possible. I understand “resolve” to mean: to bring a response that is aimed at ensuring that the violence to which the employee was exposed will not reoccur. Those measures likely relate to the adequacy of the controls, training, work environment, etc.
 In the second scenario, the employer is made aware of the violence by an allegation that work place violence has occurred. In the same fashion, the employer must resolve the matter with the employee involved. I should point out that the provision does not necessary imply that it is the victim of the violence who brings the allegation: it can anyone who witnessed the situation. Since the employer has no direct awareness of the occurrence of work place violence in such a scenario, the resolution process reasonably includes, in my view, the need to determine whether in fact, work place violence has occurred. This can be done in a summary way by management, if the facts are simple enough; but in more complex situations, it may require a more involved investigation, such as the types of investigations provided in policies dealing with the prevention of work place harassment, for example. If the facts establish that work place violence has occurred, the employer must then resolve it, in the manner that I have already outlined. In both scenarios, the reference to resolving “the matter” should be read to mean: resolving “the situation of work place violence”, not an allegation that work place violence-let alone one of harassment-may have occurred or not.
 The appellant argues that following the incident of September 22, 2015, the employer met with the parties involved and determined that no incident of work place violence had taken place. The employer made a decision not to crew the two individuals together for a period of three months to ensure that the situation would not reoccur.
 The appellant is thus of the view that in accordance with the interpretation of the appeals officer in Via Rail, the situation had been resolved and the Ministerial Delegate could therefore not issue a direction for the appointment of a competent person to investigate based solely on the fact that the employee was not satisfied with the measures taken and viewed the situation as being unresolved.
 According to the appellant, the employer acted within its prerogative when it reviewed the allegations of violence to determine whether they meet the definition of work place violence and to decide on the appropriate procedure to take in this specific case. The case law in Via Rail clearly states that section 103(3) of the MOHSR should apply to resolve a situation of violence applicable to the general work place and not an individual allegation of harassment between two employees.
 The appellant also refers to the decisions in Via Rail and in Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2014 OHSTC 1, where, both appeals officers agree that is not the purpose of the legislation to require the employer to appoint a “competent person” to investigate each and every complaint so long as the employee characterizes them as being work place violence.
 As a final point, the appellant argues that the Ministerial Delegate’s jurisdiction is limited to the application of the Code, therefore he does not have jurisdiction to issue any direction concerning the employer’s policy.
 For all these reasons, the appellant is of the view that the second direction issued on May 11, 2016, should be rescinded.
B) Respondent’s submissions
 The respondent, the ILWU Local 400 did not provide submissions in respect of this appeal.
 At the onset I will address the jurisdiction issue before delving into the merits of the appeal. The appellant has argued that the Ministerial Delegate did not have jurisdiction to investigate Mr. Hoey’s complaint and to issue a direction in this case since another official from Transport Canada, DLPO Singh had previously investigated and rendered a decision on the matter.
 The appellant supports its argument in an email that was sent by DLPO Singh, who was originally the official assigned to the case to Ms. Richards, Director, Employee Relations and Wellness that states:
Further to our meeting in your office, please follow your internal complaint procedures. I realize that your company has it named under some other heading. That is fine as long as it addresses all the elements.
I have also advised the complainant to approach your management and follow the company’s procedures.
 The Ministerial Delegate explained in his testimony that DLPO Singh’s investigation into the matter was not completed and that he never made a final decision on this case. According to the Ministerial Delegate, DLPO Singh simply told the parties to follow their internal policy regarding violence in the work place. A decision was later made by management to reassign the file to Ministerial Delegate D’Sa, at which point he conducted his investigation and issued the direction under appeal.
 Based on my review of the file and the evidence, I am unable to conclude that the complaint of Mr. Hoey had been investigated and decided upon by DLPO Singh. I do not interpret DLPO Singh’s email to Ms. Richards to amount to a decision made after a full investigation of the facts surrounding Mr. Hoey’s complaint. Therefore, in my opinion, there is nothing that precluded the Ministerial Delegate, upon being assigned this case, from conducting his own investigation into the matter and from issuing the direction under appeal.
 For these reasons, the appellant’s preliminary motion on jurisdiction is dismissed.
Merits of the Case
 I have to determine whether the employer has met its obligations under the Code and the MOHSR regarding the violence in the work place complaint filed by Mr. Hoey. More specifically, I will need to determine whether the employer has contravened paragraph 125(1)(z.16) of the Code and subsection 103(3) of the MOHSR.
 Paragraph 125(1)(z.16) reads as follows:
125(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
(z.16) take the prescribed steps to prevent and protect against violence in the work place;
 The relevant provisions of the MOHSR read as follows:
103(2) If an employer becomes aware of work place violence or alleged work place violence, the employer must try to resolve the matter with the employee as soon as feasible.
103(3) If the matter is unresolved, the employer must appoint a competent person to investigate the work place violence and provide that person with any relevant information whose disclosure is not prohibited by law and that would not reveal the identity of persons involved without their consent.
 A reading of subsections 103(2) and 103(3) leads to the conclusion that an employer who is made aware of work place violence or an allegation of work place violence has two obligations. The employer must first try to resolve the matter with the employee and if not possible, the employer must appoint a competent person to investigate the work place violence.
 The appellant is of the view that the obligation to appoint a competent person provided in subsection 103(3) of the MOHSR does not apply in the present case since after investigating the matter, the employer determined that no violence in the work place incident had taken place and took steps to resolve the matter as required by subsection 103(2) of the MOHSR. To support its position and its actions in the present case, the appellant relied extensively on the decision of the appeals officer in Via Rail, more specifically, the appeals officer’s conclusion at paragraph 136:
[…] Since the employer has no direct awareness of the occurrence of work place violence in such a scenario, the resolution process reasonably includes, in my view, the need to determine whether in fact, work place violence has occurred. This can be done in summary way by management, if the facts are simple enough; but in more complex situations, it may require a more involved investigation, such as the types of investigations provided in policies dealing with the prevention of work place harassment, for example. […]
 While the appeals officer’s decision in Via Rail has not been judicially reviewed, the interpretation of the Regulations retained by the appeals officer was commented upon by the Federal Court of Appeal in Attorney General of Canada v. Public Service Alliance of Canada 2015 FCA 273 (Public Service Alliance of Canada). The Court disagreed with the appeals officers’ conclusion that in the process of resolving the matter contemplated under subsection 20.9(3) of the COHSR, the employer must determine if the alleged violence has occurred. The Court stated at paragraph 26 that:
 While I wholeheartedly agree with Appeals Officer Hamel that these provisions are not a model of legislative drafting, I am unable to read into subsection 20.9(3) what effectively amounts to an unfettered discretion given to employers to determine whether a complaint warrants an investigation by a competent person. In my view, such an interpretation is at odds both with the scheme of Part XX of the Regulations and with the wording of its relevant provisions.
 The Federal Court of Appeal then explained the purpose behind the requirement to appoint a competent person in the following way:
 The Regulations are clearly meant accidents and injury to health occurring in work places and to protect employees who have been victiMs. of work place violence, whatever form it may take. The appointment of a competent person, that is, a person who is impartial and is seen by both parties to be impartial, is an important safeguard to ensure the fulfillment of that objective. I agree with the Respondent that allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employee’s right to an impartial investigation of their complaints with a view to preventing further instances of violence.
 The Court also explained the elements necessary to trigger the employer’s duty to appoint a competent person in the following terms:
 I agree with the application judge that the threshold should be quite low, and that an employer has a duty to appoint a competent person to investigate the complaint if the matter is unresolved, unless it is plain and obvious that the allegations do not relate to work place violence even if accepted as true. The employer has very little discretion in this respect. If the employer chooses to conduct a preliminary review of a complaint (or a so-called fact finding process), it will therefore have to be within these strict confines and with a view to resolving the matter informally with the complainant. Any full-fledged investigation must be left to a competent person agreed to by the parties and with knowledge, training and experience in these matters.
 It is important to note that although the Federal Court of Appeals’ decision dealt with the interpretation of section 20.9 of the COSHR, the requirements and language is identical to that of paragraph 103(3) of the MOHSR. Therefore the interpretation retained by the Federal Court of Appeal in that decision is applicable to the MOHSR.
 From my reading of this decision, I conclude that the Regulations do not permit federally regulated employers, who are made aware of allegations of work place violence, to proceed to conduct their own investigation into the matter to determine whether work place violence has occurred. This task falls exclusively to a competent person as defined in the Regulations.
 The employer is however permitted to conduct a preliminary review of the complaint with a view to resolve the matter. If the employer fails to resolve the matter, it must appoint a competent person to investigate the allegations unless it is plain and obvious that they do not relate to work place violence.
 In the case at bar, I find that, contrarily to what was argued by the appellant, neither the employer nor the Ministerial Delegate could conduct a formal investigation into Mr. Hoey’s complaint. I also conclude that it cannot be said it is plain and obvious that Mr. Hoey’s allegations do not constitute work place violence as defined in the Regulations. Based on his testimony, it is clear that Mr. Hoey felt threated and intimidated by the conduct of his manager. In my opinion, it is plausible that a competent person investigating all the facts could conclude that the conduct of the Captain on that day amounted to work place violence.
 I will now address the appellant’s argument that the matter had been resolved. The appellant appears to be of the view that the employer could consider that the matter was resolved even though the employee was not satisfied with the course of action taken.
 With respect, this reasoning is flawed. In my opinion, the obligation put on the employer to resolve the matter under subsection 103(2) of the MOHSR necessitates that all parties involved in the incident are satisfied with the outcome of the resolution process.
 I am supported in my conclusion in the Public Service Alliance of Canada decision, wherein, the Federal Court of appeal confirmed the interpretation retained by Human Resources and Skills Development Canada (Now Employment and Social Development Canada):
 In arriving at this interpretation of the Regulations, I find some comfort in the Guide to Violence Prevention in the Work place released by Human Resources and skills Development Canada following the adoption of Part XX of the Regulations.[...] While not binding on the Court, it is nevertheless helpful as it is designed to assists employers in applying the Regulations. It clearly states (at p.258) that “ a formal investigation by a “competent” person must take place if the employer cannot resolve the matter to the satisfaction of the employees involved.
 There is no dispute that Mr. Hoey, the alleged victim, expressed his discontentment with the decision made by management to not allow the two individuals to work together for a period of three month as a way to resolve the situation. In an email addressed to Ms. Richards, Mr. Hoey explained that he felt he was being punished for being the victim. In addition, the appellant acknowledged in its submissions that management was aware that Mr. Hoey was not satisfied with the outcome of the employer’s attempt to resolve the situation.
 Based on all the above, I find that the matter concerning the alleged work place violence complaint made by Mr. Hoey was not resolved to the satisfaction of all the employees involved. As a result, the employer was obliged under section 103(3) of the MOHSR to appoint a competent person to investigate the unresolved complaint of work place violence made by Mr. Hoey following the incident that took place on September 22, 2015.
 Finally, the appellant has an issue with the part in the Ministerial Delegate’s direction that states that the “The incident reported by Mike Hoey has not been investigated by a competent person as required by the regulation or as required under step 2 of the employer’s Violence Prevention Policy.” According to the appellant, the Ministerial Delegate’s jurisdiction is limited to the application of the Code and any direction regarding the employer’s policy falls outside the scope of his jurisdiction.
 In my opinion, the direction correctly identifies the contravention as the employer’s failure to appoint a competent person as required by paragraph 125(1)(z.16) of the Code and subsection 103(3) of the MOHSR. The inclusion of the sentence “or as required under step 2 of the employer’s policy” does not amount to a direction regarding the employer’s work place violence policy.
 I am therefore of the opinion the Ministerial Delegate correctly applied the Regulations and that his direction is well-founded.
 For all the preceding reasons, the direction issued by Ministerial Delegate D’Sa on May 11, 2016, is confirmed.
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